LIU v. UNITED STATES OF AMERICA

Filing 25

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 8/26/13. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CHANG S. LIU,

HON. JEROME B. SIMANDLE
Petitioner,

Civil No. 11-4646(JBS)
[Criminal No. 05-355(JBS)]

v.
UNITED STATES OF AMERICA,

OPINION

Respondent.

APPEARANCES:
Chang S. Liu, pro se
#124265
F.C.I. Cumberland
G-Unit
P.O. Box 1000
Cumberland, MD 21501
Steven J. D'Aguanno, Assistant U.S. Attorney
Office of the U.S. Attorney
District of New Jersey
4th Floor
Camden, NJ 08101
SIMANDLE, Chief Judge:
I.

INTRODUCTION
This matter is before the Court on a pro se application by

Petitioner Chang S. Liu for habeas corpus relief vacating his
sentence under 28 U.S.C. § 2255. [Docket Item 1.]

Petitioner

pled guilty to a one-count Indictment charging conspiracy to
violate the Racketeer Influenced and Corrupt Organizations Act,
18 U.S.C. § 1962 (RICO) and Petitioner was sentenced to 135
months imprisonment.

Petitioner's present habeas petition asserts that he was
incorrectly assigned a four-point enhancement for a leadership
role in the RICO conspiracy for sentencing purposes pursuant to
U.S.S.G. § 3B1.1(a).

The Petitioner argues his defense counsel,

Martin Schmuckler of New York City, was ineffective for failing
to investigate his entrapment defense and informing him that if
Petitioner pled guilty he would receive minimal if any jail time.
In addition, Petitioner maintains he never signed the Application
to Plead Guilty and insists that his attorney forged his
signature on the document.

Petitioner also raises objections to

the presentence report which were given to his attorney prior to
sentencing but ultimately withdrawn by his attorney and not filed
with the court.

[Docket Items 1, 4, 5, 7.]

For the reasons discussed herein, the court will deny
Petitioner's application for habeas corpus relief because the
Petitioner knowingly and voluntarily waived his right to
collaterally attack his sentence when he entered into his plea
agreement.
II.

BACKGROUND
On May 10, 2005, a grand jury returned a 58-count Indictment

against Petitioner, his wife May Liu, and numerous other
individuals.

(App.1 1.)

United States v. Chang Shan Liu, Crim.

1

"App." refers to the Appendix to Respondent's brief.
[Docket Item 20-1.] This Appendix contains the Indictment, the
plea agreement, the application to enter plea of guilty,
2

No. 05-355-02(JBS).

The Indictment charged Petitioner in Counts

2 through 51 and Counts 54 through 58 with violations of 18
U.S.C. §§ 371, 545, 2320, 2342, 1956, and 1957 for his
involvement in trafficking counterfeit and contraband cigarettes,
money laundering and trafficking in goods bearing counterfeit
marks. (App. 6.)

The first count of the Indictment charged

Petitioner with a racketeering conspiracy and named his wife, May
Liu, Cheng Ming Hsu ("Bruce"), and Co Khanh Tang as coconspirators.

(App. 12.)

Prior to the Indictment, Petitioner's wife and co-defendant
May Liu suffered a debilitating stroke.

(Docket No. 05-cr-355,

Docket Item 97.) Petitioner and his wife, May Liu, initially
entered a plea of not guilty.
A. Grounds Raised by Petitioner
On August 11, 2011, Petitioner filed the instant motion to
vacate, set aside or correct his sentence pursuant to 28 U.S.C. §
2255.2

[Docket Item 1.]

The Petitioner relies on several

grounds to support his application for habeas corpus relief.

In

particular, Petitioner primarily argues he did not understand
that his plea agreement included a stipulation to a leadership

transcripts from the Rule 11 hearing and sentencing, notice of
appeal, declaration of counsel and several letters.
2

The timeliness of Petitioner's motion was already
addressed by the court in its May 14, 2012 Memorandum Opinion,
where the court held equitable tolling was appropriate and
Petitioner's § 2255 motion was deemed timely. [Docket Item 15.]
3

role in the conspiracy and consequently, a four-point
enhancement.

Petitioner also argues that his counsel was

ineffective.

First, Petitioner maintains his counsel failed to

fully investigate his entrapment defense and failed to timely
object to the characterization of his role as a leader or
organizer in the conspiracy.

Petitioner points to his objections

to the PSR which were withdrawn by counsel prior to sentencing in
support of his argument.

Second, Petitioner contends his counsel

informed him he would receive little if any jail time for
pleading guilty.

Petitioner maintains that if he had known he

could face over twelve years in prison he would not have pled
guilty.

In addition, Petitioner alleges his attorney forged his

signature on the Application to Plead Guilty and he has no
recollection of reading or signing this document.3
The government filed opposition to this petition.

3

First,

Petitioner further argues that his counsel never informed
him he was licensed only in New York and he does not know whether
his counsel was authorized to represent him in the District of
New Jersey. Attorneys are not required to be members of the bar
of District Court of New Jersey in order to represent defendants
in a criminal proceeding. See Fed. R. Crim. P. 44(a); L. Crim.
R. 44.1(a). Instead, attorneys who are not a member of the bar
of this court are required to certify that "he or she is a member
in good standing of the bar of a court of the United States or of
the highest court of a state, who is not under suspension or
disbarment of any court, and shall indicate the bar(s) of which
he or she is a member and the year(s) of admission." L. Crim. R.
44.1. In this case, Mr. Schmukler entered a written notice of
appearance indicating his bar code and New York Office address.
[Crim. No. 05-355, Docket Item 50.] Therefore, Mr. Schmukler was
authorized to represent Petitioner in the underlying criminal
action.
4

the government argues that Petitioner entered into his plea
agreement knowingly and voluntarily.

As part of that plea

agreement, Petitioner waived his rights to bring a Section 2255
petition so long as he was sentenced within or below the
Guideline range for a Level 33 offense.

Since Petitioner was

sentenced within the Guideline range for a Level 33 offense, the
government argues Petitioner waived his rights to bring the
instant action and his motion to vacate should be denied.
The government also addressed the merits of Petitioner's
ineffective assistance of counsel claims.

The government argues

the Petitioner is unable to show that he was prejudiced by his
counsel's decision because he has not proved that if counsel took
the actions about which Petitioner claims, there would have been
a different result.

The government argues that Petitioner must

show that but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial.

The government

states Petitioner cannot meet this burden.
Finally, with regard to Petitioner's arguments about the
length of his sentence and his alleged forged signature, the
government contends these are meritless.

The government argues

that the court fully disclosed to the Petitioner that the plea
agreement stipulated to a Level 33 offense which could result in
135-168 months in prison and that neither the court nor the
parties could make any guarantees about what his sentence would

5

be.

Rather, the government maintains the court explained that

sentencing was within the sole discretion of the court, that the
Guidelines were advisory, and his sentence could not be
determined until the PSR was received.

In addition, the

government states that the court asked Petitioner about his
Application to Plead Guilty on the Record and confirmed that
Petitioner had indeed signed the document.

Therefore, the

government maintains Petitioner's arguments are without merit.
Petitioner filed a reply to the government's answer.
Petitioner reiterates that he was not aware he was pleading to a
four-point enhancement as a leader of the conspiracy.

Petitioner

also argues that the government correctly states that the only
reason he pled guilty was to dismiss the charges against his
wife.

Petitioner states in his reply that due to his wife's

debilitated condition after her stroke, he wanted to ensure she
would not receive a prison sentence and could continue to be
cared for at home.

Petitioner maintains his counsel told him

"the only way to avoid a trial and prison for his wife was to
accept the guilty plea offered by the government."

(Pet'r's

Reply at 5.)
B. Rule 11 Hearing
On December 12, 2006, Petitioner entered an application to
plead guilty and executed a plea agreement.
355, Docket Items 109, 110.)

(Docket No. 05-cr-

The plea agreement provided that

6

Petitioner would plead guilty to Count One of the Indictment.

In

exchange, the government would dismiss the remaining counts,
dismiss a separately pending indictment against Petitioner, and
dismiss the charges against Petitioner's wife.

(App. 89.)

The

plea agreement also incorporated several stipulations regarding
sentencing.

Importantly, the plea agreement stipulated that

"Defendant was an organizer or leader of criminal activity that
involved five or more participants or was otherwise extensive.
Pursuant to U.S.S.G. § 3B1.1(a), the offense level is increased
by 4 levels."

(App. 96 ¶ 5(d)).

This caused the offense level

to be increased by four levels pursuant to U.S.S.G. § 3B1.1 and
resulted in an overall offense level of 33.

(App. 96-98.)

A lengthy plea hearing was held the same day before the
undersigned.

First, the government put the terms of the plea on

the record, including its agreement to dismiss the remaining
charges against Petitioner, dismiss the additional indictment
against Petitioner and dismiss the charges against May Liu.
(App. 108:22:-109:7.)

The government informed the court that the

plea agreement stipulated to an Offense Level 33.

(App. 109:21-

110:4.)
The court questioned Petitioner's counsel on whether he
explained to Petitioner what the sentencing guidelines mean.
Counsel responded, "Well, as much as you can explain to any
layperson, Judge, what sentencing guidelines mean.

7

I've

explained them insofar as they need to be explained in connection
with these proceedings." (App. 111:19-22.)

Counsel later

remarked that it was his intent during sentencing to "take issue
with the level of the defendant's culpability.

And we consider

ourselves of course bound by the agreements that we have made
here, but there are still explanatory circumstances that your
Honor might also consider under 3553(a)."

(App. 113:6-10.)

Counsel also argued that Petitioner reserved the right to raise
his wife's condition and his role as caretaker at sentencing, and
this provision was added in writing.

(App. at 6 ¶ 15.)

The court then asked Petitioner to take the stand and
establish the factual basis for his plea.

Petitioner was sworn

in and informed that if he knowingly gave a false answer, he
could be subject to perjury.

(App. 126:18-20.)

Petitioner

stated that English was his second language, but he considered
himself fully fluent in English in reading and writing and did
not need the assistance of an interpreter.

(App. 126:7-128:4.)

Petitioner then affirmed on the record that he reviewed his
application for permission to enter a plea of guilty with his
attorney, that the information contained therein was true and
correct and that he signed it on the last page.
129:14.)

(App. 128:25-

The court asked expressly:

COURT: And did you sign it [the Application for
Permission to Enter Plea of Guilty entered as Ex. C-2]
on the next to last page?

8

LIU: Yes, I did.
(App. 129:12-14.)
The court then asked Petitioner if he had reviewed the
Indictment with his attorney and if he understood what the
Indictment charged against him.
(App. 129:19-24.)

Petitioner indicated he did.

The court then inquired whether Petitioner was

pleading guilty voluntarily:
COURT:

Is it your own personal decision to plead guilty?

LIU: Yes.
COURT: In other words, are you pleading guilty because
that's what you feel is best for you?
LIU:

Yes, yes, I am.

COURT: Are you pleading guilty of your own free will?
LIU: Yes.
COURT: And has anyone forced you to plead guilty?
LIU: No.
(App. 131:1-12.)
The court next discussed the terms of the plea agreement
with Petitioner.

Petitioner testified that he read the plea

agreement and gone over it carefully with counsel.

He affirmed

that his counsel explained what the plea agreement means.

He

testified that counsel explained the stipulations to him and that
he understood those stipulations (App. 131:20-132:17), and that
he accepted those stipulations as part of his plea agreement
(App. 132:15-17).

The court asked:
9

COURT: And are the stipulations true and correct as far
as you know?
LIU: Yes.
COURT: And then do you accept your entire plea agreement?
LIU: Yes, I am.
(App. 132:18-23.)
agreement.

He testified that he signed his plea

(App. 132:24-133:1.)

Finally, the court discussed the rights Petitioner would
give up by pleading guilty and reviewed the sentencing guidelines
with Petitioner.

The undersigned explained that "as I sit here

today, I have no idea what your sentence will be or what it
should be, and that remains to be determined."

(App. 136:21-23.)

The court discussed how a conviction for a racketeering
conspiracy carried a maximum penalty of up to 20 years in federal
prison and there was no possibility of parole in the federal
system.

(App. 137:3-24.)

The court also explained that a fine

could be imposed amounting to the greatest of $250,000 or twice
the gross profits or proceeds of the crime.

(App. 138:12-15.)

The court then discussed the forfeiture provisions implicated in
this case.

(App. 139:7-16.)

Petitioner understood all of this

sentencing information, including the fact that he risked being
sentenced up to 20 years in prison if he pled guilty to Count 1.
The court then described, in minute detail, how the
sentencing guidelines work and how his sentence would be computed
if the court ultimately determined his offense level was 33, as
10

stipulated by the parties in the plea agreement.
THE COURT: All right. Mr. Liu, do you understand that the
first score I mentioned, which is your offense level, is
the score that applies to the seriousness of your
offense. It looks at what actually happened, what your
role was in the offense, how much money was involved,
what the nature of the victims were, and it looks at all
relevant conduct which contributed to your offense, and
assigns a certain number of points in accordance with the
guidelines. The points are added up and that gives you
your total offense level. In this chart -- I'm sorry; in
your plea agreement, you stipulated that offense level 33
seems to be the appropriate offense level. And so I'll
take that as an example.
The second score I mentioned is your criminal history
category. This looks at whether you've been previously
convicted of any crimes, whether federal, state or local.
And the more prior convictions and more aggravated those
circumstances are, then the worse is your criminal
history category running from 1 to 6. Do you have any
prior convictions?
LIU: No.
THE COURT: Okay. The probation department will do a
records check, and assuming you have no prior convictions
then you're at the most favorable category, which is
category one. If something comes up that will be
disclosed in the probation report, you'll have an
opportunity to contest that. But if it's accurate then
points can be added and that can put you in a higher
criminal history category. If we just say for today's
purposes, for example, that you're in category one, then
we look at level 33, if that's what it turns out to be,
we look at criminal history category one and we see where
the two scores meet. And what we give is an advisory
guideline range, that is, what's recommended between 135
and 168 months of imprisonment in this example. Do you
see this?
LIU: Yes, yes, I do.
THE COURT: Now, I said that they're advisory, that means
I'm not bound by this score or by the guidelines or by
the guideline range. But it is one factor that I must
take into account in determining a just sentence. Are you
with me so far?
11

LIU: Yes, yes, I am.
THE COURT: And there's other factors that must be
considered, and those are the other 3553(a) factors, that
include your background and characteristics, the nature
circumstances and seriousness of your crime, the need to
compensate victims, the need for rehabilitating you, the
need for deterring you and others from committing similar
crimes, the need to punish, the need to protect society,
and also any unusual features that would distinguish your
case from other cases must all be taken into account. And
when I've heard everybody's views on that, then for the
first time I'm in a position to determine a just
sentence. Now, what do I mean by just sentence. I mean a
sentence that's sufficient, but no greater than necessary
to satisfy the purposes that Congress has set for
sentencing in federal court, as applied to your
individual case. Do you understand that?
LIU: Yes, I do, your Honor.
THE COURT: And are you willing to take these risks that
are entailed with your sentencing, that you may receive
a sentence that's different from what you hoped for or
what you expect? Do you understand that?
LIU: Yes.
THE COURT: And do you understand that there is no
agreement as to what your sentence will actually be?
LIU: Yes, I do.
THE COURT: And finally do you understand you'll not be
permitted to withdraw your plea of guilty on the ground
that your advisory guideline range is different from what
you hoped for or expect, or on the ground that the
sentence you receive is different than from what you hope
or expect; do you realize that?
LIU: Yes, I do.
THE COURT:
sentencing?

And

do

you

have

any

questions

about

LIU: No, no, your Honor.
THE COURT: And have you discussed all this with your
12

attorney?
LIU: Yes.
(App. 142:6-145:9.)
The court then permitted AUSA Mitchell to examine Petitioner
to establish the factual basis for his plea.

Petitioner admitted

to engaging in a lengthy and serious pattern of illegal activity,
including certain Racketeering Acts, from November 1999 through
August 2005, in New Jersey, California and Illinois, as charged
in Count One.

(App. 147:4-12.)

Petitioner testified that he was responsible for passing
documents from Mr. Hsu ("Bruce") to undercover agents.
Petitioner stated, "I only talked to the undercover agents when
Mr. Hsu has something, wants to ship to states and want me to
talk to the agents.
the agent."

Then I act on his request, then I talk to

(App. 148:9-12.)

Petitioner averred his involvement in multiple transactions
of counterfeit cigarettes.

He testified that he was involved in

coordinating delivery and payment for counterfeit goods between
Mr. Hsu and undercover agents, pursuant to Mr. Hsu's
instructions.

(App. 147:3-162:15.)

Petitioner also admitted to

translating at meetings between undercover agents and Mr. Hsu.
(App. 155:25-156:1.)
After AUSA Mitchell finished her questioning, the court
accepted Petitioner's plea of guilty and found the factual basis

13

adequate.

(App. 163:12-14.)

The court then discussed with

Petitioner his waiver of the right to appeal and his right to
file a Section 2255 petition challenging his sentence.

The

waiver of the right to seek Section 2255 relief if he was
sentenced at Level 33 or less is contained in the plea agreement.
(App. 98 ¶ 13.)

First, the court had Petitioner read the waiver

in the plea agreement to himself.

Then the court engaged in the

following colloquy with regard to Petitioner's waiver of his
right to file a Section 2255 petition:
THE COURT: Okay. The second right that I mentioned is
called your right to obtain post conviction relief. Under
Section 2255, every defendant has this right, which means
that for one year after your conviction becomes final,
you can file a petition with me, as the sentencing judge,
asking me to take a second look at your case. And you
would raise the ground that your conviction was
unconstitutional or unlawful under federal law, or that
your sentence was, and ask me to correct it. And you have
that right for up to one year, unless you give it up. Do
you understand that?
THE DEFENDANT: Yes.
THE COURT: This says that you wish to give up that right
as long as your sentence is not greater than a level 33
sentence would be, is that your understanding as well?
THE DEFENDANT: Yes.
THE COURT: And similarly, if your sentence ends up being
greater than a level 33 sentence would be, that you
continue to retain your right to seek post conviction
relief. Is that your understanding as well?
THE DEFENDANT: Yes, yes.
THE COURT: And have you also discussed this waiver with
your attorney?

14

THE DEFENDANT: Yes.
THE COURT: All right. Do the attorneys believe that these
answers also establish his knowing and voluntary waiver
of the appellate and 2255 rights?
MS. MITCHELL: Yes, your Honor.
(App. 165:10-166:11.)
The court then accepted Petitioner's plea of guilty and
found his waiver of appeal and Section 2255 relief knowing and
voluntary.

(App. 166:20-167:8.)

C. Sentencing
On July 31, 2007, Petitioner was sentenced by the
undersigned.

(Docket No. 05-355, Docket Item 148.) Prior to

sentencing, the Probation Office prepared a presentence report
("PSR") that described the offense conduct in this case.
Petitioner filed objections to the PSR with his attorney on May
1, 2007.

(App. 259.)

In this letter, Petitioner denied being an

"organizer or leader" of the group and stated the PSR was
"totally incorrect" in characterizing him as such.
1.)

(App. 259 ¶

Petitioner also took issue with the fact that the case

against his wife, May Liu, was still pending.

Petitioner stated,

"To dismiss my wife from the case was the reason that I accepted
the plea."

(App. 259 ¶ 2.)

Petitioner then stated in his letter

numerous factual findings in the PSR that were incorrect and
described his recollection of events.

(App. 259-263.)

In

particular, Petitioner indicated that the undercover agents

15

sought out the Lius to assist with the criminal venture, and that
initially the Lius believed the business was legal.

(App. 259 ¶

4, 260 ¶ 6.)
Petitioner's counsel forwarded this letter to the Probation
Office on June 25, 2007.

Three days later, on June 28, 2007,

Petitioner's counsel wrote to the Probation Office and withdrew
the letter and all objections to the PSR.

Specifically, counsel

stated:
On June 25, 2007 I sent you a letter raising issues
directly bearing on my client's culpability for the
offense (attached thereto was a copy of Chang Liu's
comments on the PSI Report).
I have since had a
conference call from AUSA's Hallie Mitchell and Steven
D'Aguanno who also received this submission.
I am
appreciative of the professionalism they displayed in
sharing their concerns on the issues that my objection
letter and attachment would open. Their advice was sound
and constructive. I consulted with my client fully about
this matter and after further mature reflection and
reconsideration, it is our wish to withdraw the letter of
objection and we ask you not to consider it.
(App. 265.)
Petitioner's counsel averred in his declaration that he
withdrew Petitioner's objections to the PSR because the Assistant
United States Attorneys informed him it could result in
Petitioner being denied a reduction in his offense level for
acceptance of responsibility.
Schmuckler, ¶ 18.)

(App. 271, Decl. of Martin L.

Consequently, Petitioner's objections were

withdrawn and the PSR was finalized without reference to
Petitioner's letter.

16

During sentencing, the court adopted the PSR and found the
total offense level was 33 under the guidelines.
178:3).

(App. 177:25-

This calculation included a four point enhancement due

to Petitioner's role as a leader and organizer of the conspiracy,
consistent with the stipulation in the plea agreement.

The court

also recognized Petitioner was in Criminal History Category I and
the recommended Guideline range was custody between 135 months
and 168 months.

(App. 78:2-3.)

Petitioner's counsel filed a formal motion for a downward
departure based on Petitioner's wife's condition.

The court

heard extensive oral argument, and in an oral opinion which spans
ten pages of transcript, denied the motion.

(App. 231-240.)

The

court also entertained argument from Petitioner's counsel
regarding an entrapment defense and the role undercover agents
played in the conspiracy and Petitioner's involvement.
178-183.)

(App.

Defendant then testified that he was his wife's

primary caregiver and was present with her 24 hours a day to help
her complete regular exercises and care for her daily needs.
(App. 201-203.)
After explaining his caregiving role, Petitioner then asked
the court whether he could "say one more thing."

(App. 205:8-9.)

Petitioner then went on to testify about his role in the
conspiracy and his objections to the PSR. (App. 205:11208:4.)
The court then questioned Petitioner on his role in the

17

conspiracy and the government objected to this colloquy.
208:5-9.)

(App.

The court then engaged in questioning with Petitioner

to determine whether he accepted full responsibility for each of
the things he pled guilty to at the Rule 11 hearing.
209:9-12.)

(App.

The court asked:

COURT: . . . I've seen some 50 defendants in related
cases now, is there anyone in the United States that had
more authority than you did for these operations?
THE DEFENDANT: I cannot truly honestly answer your
question, Judge. I am only do what Bruce tell me to do.
Well, as far as other 49 people or 50 people, what they
were doing, I don't really have any idea so I really
can't answer your question honestly.
COURT: All right.
(App. 211:4-12.)

After engaging in a further colloquy regarding

Petitioner's role in the conspiracy, the court inquired why these
issues were being discussed for the first time at sentencing.
The court explained:
COURT: By my entertaining what the defendant is saying,
I'm not suggesting that I have any issues with this plea
agreement. The defendant now is distancing himself from
the money laundering racketeering acts that he pled
guilty to and I need to determine what he's doing and
what his attorney is doing because I'm puzzled by this.
It is a development I didn't anticipate today either.
(App. 213:9-15.)
The court then questioned Petitioner's counsel on why these
arguments were being brought up during sentencing rather than
during the Rule 11 hearing.

Petitioner's counsel assured the

court that Petitioner did not wish to withdraw his plea:

18

MR. SCHMUKLER: It's not our intention to repudiate the
plea agreement, Judge, or to have your Honor think or
doubt as to whether he's accepting full responsibility.
He took that plea and he's here to stand by it. He's not
asking to have the plea agreement set aside, withdraw his
guilty plea.
(App. 216:3-8.)
The government then responded to Petitioner's statements and
addressed the court.

In particular, the government explained the

benefits of the plea bargain and the parties' stipulation to
Petitioner's role in the conspiracy.

Specifically, the

government discussed the issue of Petitioner's wife and her
questionable competency:
MS. MITCHELL: The government has its certain beliefs on
why they believe they could prove May Liu's competency.
For instance, we don't think that whether or not -- and,
you know, we knew she has suffered a great deal and
that's part of our calculation to be honest with you. And
it is unfortunate that her speech is now severely
hindered. And, obviously, that could be debated on her
performance in front of others as opposed to what she
could actually do. I mean, these are all things that
could be evaluated by experts. But for the government,
your Honor, the calculation doesn't end there. And the
same with the case law, it's still could the person
assist beyond whether or not they could speak, and these
would be issues that we would have to address in a
competency hearing. And these sort of multiple factors
are why, you know, the government believed it wasn't
proper to go forward against May Liu at this time so long
as the defendant was willing to accept responsibility.
And there were numerous calculations that went into why
that decision was made.
. . .
Moreover, in this plea agreement, the government agrees
to, at the conclusion of the defendant's sentencing,
dismiss all the counts against May Liu in both of those
indictments. So there was substantial benefit that was
19

provided to the defendant by not just walking in and
accepting a plea to the Indictment.
(App. 222:15-223:7; 223:24-224:4.)

The government then clarified

that Petitioner's role in the conspiracy should not be considered
by the court during sentencing because the parties stipulated to
a four-point enhancement as part of the plea agreement.
MS. MITCHELL: The only thing that we need to prove, which
we don't even need to because it was a plea, is that he
was a leader. And that's really the important thing.
THE COURT: And the parties, of course, stipulated to the
plus four enhancement for his superior role.
MS. MITCHELL: Exactly.
(App. 224:10-15.)
At the conclusion of the sentencing hearing, the court
denied Petitioner's motion for a downward departure based on his
wife's condition. (App. 231:10-240:11.) In imposing this
sentence, the court noted:
COURT: And also, and perhaps most troubling, the
defendant [distancing] himself from what he pled guilty
to and admitted under oath during his guilty plea
colloquy, which was to being a person with major
responsibility for a series of transactions in concert
with the undercover agents in which he played the
dominant role in the United States in this international
conspiracy.
. . .
The guidelines, however, have captured this in his
enhanced role adjustment and also in including much of
the conduct here.
(App. 240:24-241:6; 241:13-15.)
The undersigned then issued his sentence and committed
20

Petitioner to 135 months of imprisonment, consistent with the
bottom of the Guidelines range for a Level 33 offense as set
forth in the plea agreement and PSR.
D. Direct Appeal
Petitioner's counsel filed a timely notice of appeal and
argued that this court erred in denying Petitioner's motion for a
downward departure.

Specifically, counsel argued that the court

improperly relied on the fact that Petitioner's wife, May Liu,
had participated in his offense conduct and consequently violated
Petitioner's due process right to have his sentence predicated
only upon personal guilt.

(App. 255.)

The Third Circuit declined to exercise jurisdiction to hear
Petitioner's appeal and found Petitioner executed a knowing and
voluntary appellate waiver and failed to establish that the
waiver's enforcement would work a miscarriage of justice.

United

States v. Liu, 317 Fed. Appx. 166 (3d Cir. 2008).
Petitioner did not file a petition for a writ of certiorari.
III.

DISCUSSION

When considering a § 2255 petition the Court must hold an
evidentiary hearing, unless the record and motion of a case
conclusively indicate that the movant is not entitled to relief.
United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005).

The

Court is required to accept the Petitioner’s factual allegations
as true so long as they are not “clearly frivolous,” which the

21

Court can establish by examining the existing record.

Id.

Nevertheless, should the movant’s petition contain “vague and
conclusory” allegations it is at the Court’s discretion to
dispose of it without further inquiry.

United States v. Thomas,

221 F.3d 430, 437 (3d Cir. 2000).
A waiver in a plea agreement of the right to appeal and
collaterally attack a sentence is valid as long as it was entered
into knowingly and voluntarily and does not work a miscarriage of
justice.
2005).

United States v. Wilson, 429 F.3d 455, 458 (3d Cir.
"Whereas a defendant bears the burden of presenting an

argument that would render his waiver unknowing or involuntary, a
court has an affirmative duty both to examine the knowing and
voluntary nature of the waiver and to assure itself that its
enforcement works no miscarriage of justice, based on the record
evidence before it."

United States v. Mabry, 536 F.3d 231, 237-

38 (3d Cir. 2008.)
In this case, the record establishes that the Petitioner
knowingly and voluntarily entered into the collateral attack
waiver contained in his plea agreement.

The Petitioner was

questioned extensively by the undersigned at the Rule 11 hearing
regarding Petitioner's decision to waive his right to
collaterally attack his sentence under 28 U.S.C. § 2255.

As

noted above, at 14-15, during his Rule 11 hearing, Petitioner reread the portion of his plea agreement containing the waiver of

22

appeal and of post-conviction relief under § 2255 appearing in ¶
13 of his stipulations, which he then indicated he understood.
(App. 163:19-25.)

He also understood that a Level 33 sentence at

Criminal History Category I contemplated a recommended Guideline
Range extending up to 168 months in prison, and that he was
giving up his right to seek post-conviction relief under § 2255
if his sentence was 168 months or less.
and 165:21 to 166:4.)

(App. 164:13 to 165:3,

Petitioner confirmed that he discussed

waiver of his right to seek § 2255 relief with his attorney.
(App. 166:5-7.)
Specifically, the court engaged in the following colloquy
with Petitioner to ensure the waiver of his right to file a
Section 2255 petition was knowing and voluntary:
THE COURT: Okay. The second right that I mentioned is
called your right to obtain post conviction relief. Under
Section 2255, every defendant has this right, which means
that for one year after your conviction becomes final,
you can file a petition with me, as the sentencing judge,
asking me to take a second look at your case. And you
would raise the ground that your conviction was
unconstitutional or unlawful under federal law, or that
your sentence was, and ask me to correct it. And you have
that right for up to one year, unless you give it up. Do
you understand that?
THE DEFENDANT: Yes.
THE COURT: This says that you wish to give up that right
as long as your sentence is not greater than a level 33
sentence would be, is that your understanding as well?
THE DEFENDANT: Yes.
THE COURT: And similarly, if your sentence ends up being
greater than a level 33 sentence would be, that you
23

continue to retain your right to seek post conviction
relief. Is that your understanding as well?
THE DEFENDANT: Yes, yes.
THE COURT: And have you also discussed this waiver with
your attorney?
THE DEFENDANT: Yes.
THE COURT: All right. Do the attorneys believe that these
answers also establish his knowing and voluntary waiver
of the appellate and 2255 rights?
MS. MITCHELL: Yes, your Honor.
THE COURT: To be extended in paragraph 33.
MS. MITCHELL: Yes, your Honor.
MR. SCHMUKLER: Yes, your Honor.
(App. 165:10-166:14.)

The Court found, at the conclusion of the

Rule 11 colloquy, that Petitioner's waiver of appeal and § 2255
relief was knowing and voluntary.

(App. 167:4-5.)

Petitioner

was sentenced at the bottom of the guideline range for a Level 33
offense.

Therefore, the court finds that the Petitioner

knowingly and voluntarily waived his right to bring the instant
application by entering into the collateral attack waiver in his
plea agreement.
This holding is in line with the Third Circuit's denial of
Petitioner's direct appeal.

In dismissing the appeal, the Third

Circuit noted that the Liu did "not dispute that he knowingly and
voluntarily waived his right to appeal during the guilty plea
proceeding."

Liu, 317 Fed. Appx. at 168.

24

The Third Circuit

rejected Petitioner's argument that his waiver was subsequently
invalidated during sentencing and instead found Liu's waiver was
enforceable and that enforcement of the appellate waiver would
not work a miscarriage of justice.

Id. at 169.

Consequently,

because "Liu knowingly and voluntarily executed a valid appellate
waiver" and failed to establish that its enforcement would work a
miscarriage of justice, the Third Circuit declined to exercise
jurisdiction over Liu's direct appeal.

Id.

Here, the Petitioner again failed to present any evidence
that he did not knowingly and voluntarily waive his right to
collaterally attack his sentence under Section 2255.

The

Petitioner has likewise produced no evidence that the enforcement
of the appellate waiver would work a miscarriage of justice.
To the extent Petitioner argues he is entitled to habeas
relief because his counsel informed him he would serve little if
any jail time, his counsel failed to investigate his entrapment
defense, and his counsel forged his signature on the application
to plead guilty; these arguments are without merit.
The plea agreement unequivocally states that the terms of
the agreement are not binding on the sentencing judge and that
Petitioner could be sentenced in accordance with the statutory
maximum for the crimes pled, which in this case was 20 years for
the conspiracy charge.

This understanding was reinforced by the

sentencing judge at the plea colloquy when the undersigned

25

reiterated that the court had discretion in imposing a sentence
and Petitioner's sentence could not be determined until the
presentence report was issued.
In fact, the Court went through the Guidelines with
Petitioner on the record and explained how to calculate a
Guideline score.

The undersigned calculated the Guideline range

for a level 33 offense and explained to Petitioner that the
Guidelines recommended between 135 and 168 months of
imprisonment.

The court further emphasized:

COURT: And finally do you understand you'll not be
permitted to withdraw your plea of guilty on the ground
that your advisory guideline range is different from what
you hoped for or expect, or on the ground that the
sentence you receive is different than from what you hope
or expect; do you realize that?
LIU: Yes, I do.
(App. 144:22-145:3.)
Therefore, any erroneous predictions about sentencing by
Petitioner's counsel were dispelled by the court during the Rule
11 hearing and cannot be a basis for Petitioner's habeas
application.
In addition, Petitioner testified during the Rule 11 hearing
that he read and signed the Application to Enter a Plea of
Guilty.

Specifically, the court questioned:

COURT: And did you sign it [the Application for
Permission to Enter Plea of Guilty entered as Ex. C-2]
on the next to last page?
LIU: Yes, I did.
26

(App. 129:12-14.)

The Petitioner cannot now be heard to claim

that he did not see or sign this document.
fabricated this ground.

Petitioner has

The Petitioner was shown the document

during the Rule 11 hearing and authenticated his signature on the
record.

His argument now that his signature was forged by

counsel is inherently incredible and cannot be a basis of his
habeas petition.4
Finally, Petitioner argues that his counsel did not properly
investigate his entrapment defense prior to his guilty plea.
This ground has been waived due to Petitioner's knowing and
voluntary waiver of Section 2255 relief.

This argument is also

without merit as the record clearly indicates his counsel
understood Petitioner's entrapment defense and thoroughly
investigated the merits of this defense.5

First, Petitioner was

4

Petitioner also argues in his papers that he was not
present in court on December 12, 2006 when the guilty plea was
taken. This argument is patently frivolous since the record
clearly indicates Petitioner was present in court and gave
testimony. This is one of several false allegations Petitioner
has made before this Court.
5

If, despite Petitioner's waiver, this Court were to reach
this ground, it would be frivolous. The constitutional adequacy
of counsel is determined under the two-part test of Strickland v.
Washington, 466 U.S. 668, 687 (1984). To prevail on a claim of
ineffective assistance of counsel, Petitioner must demonstrate
that (1) counsel’s performance was so deficient as to deprive him
of the representation guaranteed to him under the Sixth Amendment
of the United States Constitution, and (2) the deficient
performance prejudiced the defense by depriving the defendant of
a fair trial. Strickland, 466 U.S. at 687. Under the first
prong, Petitioner has not shown that counsel failed to pursue a
productive line of defense or that his investigation of
27

clearly aware of the facts supporting his so-called entrapment
defense when he entered his plea of guilty and prior to his
sentencing.

This is evidenced by Petitioner's letter to his

attorney with his objections to the PSR.

(App. 259-263.)

Further, Petitioner's counsel engaged in an extensive dialogue
with the court during the sentencing hearing regarding a
potential entrapment defense.

Petitioner's counsel stated, "I

think any fair arbiter, whether it be a bench trial or before a
jury, would most likely have found that there was [sic] way too
much criminal violations irrespective of issues of propensity for
anyone to mount a claim of entrapment."

(App. 179.)

Petitioner's counsel further noted to the court during the Rule
11 hearing that he intended to raise issues regarding
Petitioner's level of culpability during sentencing for the court
to consider under § 3553(a).

(App. 113.)

Therefore, it is clear from the record that counsel was
aware of Petitioner's potential entrapment defense and did not

entrapment was deficient, as explained in the text. As to the
second prong, the failure to have asserted entrapment as a
defense did not change the result of this case. It would have
been a frivolous exercise for Mr. Liu to claim that government
agents induced him to commit the criminal spree over more than
five years of time in New Jersey, California and Illinois,
wherein he told the agents where many loads of contraband and
counterfeit cigarettes would be smuggled into the country and
delivered for distribution, as he admitted in his extensive Rule
11 colloquy. He also admitted his roles in money laundering and
directing where money should be sent, including overseas, and in
what amounts on many occasions, as charged. He admitted
committing his crimes knowingly and voluntarily.
28

fail to investigate or pursue it.

Rather, Petitioner's counsel

concluded it was not exculpatory and that the degree of
government involvement at best could be used to argue a variance
from the Guidelines at sentencing under § 3553(a).

This is a

reasonable strategy for competent counsel, and is not a deviation
from what the constitution requires.

Accordingly, this argument

is insufficient to support Petitioner's application for habeas
relief.
Accordingly, the court will deny Petitioner's Section 2255
application.
IV.

CONCLUSION
As explained above, the Court has concluded that the motion

and files and records of this case conclusively show that, as a
matter of law, Petitioner is not entitled to relief because he
knowingly and voluntarily waived his right to collaterally attack
his sentence when he entered into his plea agreement.

Therefore,

the Petitioner's motion to alter, vacate or amend his sentence
pursuant to Section 2255 will be denied.

The accompanying Order

will be entered.
V.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c)(1)(B), “[u]nless a circuit

justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals from the final order in
a proceeding under section 2255.” A certificate of appealability

29

may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” § 2253(c)(2). To
satisfy that standard, a petitioner must demonstrate that
“jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003).
Here, jurists of reason could not disagree with the Court’s
resolution of Petitioner’s claims.

The conclusions reached in

this Opinion are not close calls. Under the standard recited
above, the Court will deny a certificate of appealability.

August 26, 2013
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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